Howard v. Jay

561 N.E.2d 274, 203 Ill. App. 3d 539, 148 Ill. Dec. 968, 1990 Ill. App. LEXIS 1429
CourtAppellate Court of Illinois
DecidedSeptember 20, 1990
Docket4-89-0758
StatusPublished
Cited by5 cases

This text of 561 N.E.2d 274 (Howard v. Jay) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Jay, 561 N.E.2d 274, 203 Ill. App. 3d 539, 148 Ill. Dec. 968, 1990 Ill. App. LEXIS 1429 (Ill. Ct. App. 1990).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Bob Howard appeals pro se from a judgment for defendant Jack Jay in an action to recover the contract price due under a construction contract between plaintiff and defendant. The trial court found plaintiff had not substantially complied with the terms of the contract and plaintiff was not entitled to recover on a quantum meruit theory. Plaintiff argues the trial court’s findings are against the manifest weight of the evidence. Defendant has not filed a brief in this court. Because the record is simple and the claimed error is such that we can easily decide the case without the aid of appellee’s brief, we will address the merits of plaintiff’s appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) For the reasons that follow, we reverse.

Only those facts necessary to a resolution of the issue before us will be recited.

In May 1988, plaintiff and defendant entered into a written agreement whereby plaintiff would build a foundation for defendant’s log cabin. The foundation was constructed on land owned by defendant and 300 yards away from defendant’s present residence. The parties agreed on a price of $7,820. During construction, plaintiff alleged defendant asked that additional materials be provided, including, inter alia, steel to reinforce the foundation walls and windows. Defendant also asked plaintiff to do some plumbing work. According to plaintiff, the amount due under the contract, including the extras defendant requested, was $10,428.62. After the work was completed in September 1988, defendant refused to pay plaintiff anything under the contract. As an affirmative defense to plaintiff’s action, defendant alleged plaintiff did not perform the work in a workmanlike manner and did not substantially perform the contract because the floor of the foundation was not level and the walls were cracked.

■ At trial, Roy Roush, a contractor in the concrete business for 32 years, testified for plaintiff that in his expert opinion, plaintiff did a fair job on the foundation. Roush explained that concrete floors are never completely level and any variances in the walls and floors in defendant’s foundation were within normal range. Roush opined defendant could put a house on the foundation, without any alteration. Roush noted that while the foundation was open to the elements from November 1988 to the time of trial in May 1989, the weather had not been bad enough to damage the foundation.

Plaintiff testified he had been in the concrete business since 1953. After plaintiff began to dig the footings for the foundation, defendant asked plaintiff to put steel in the walls and asked for four basement windows. When plaintiff finished the walls at the end of August 1988, he asked defendant for an installment payment under the contract of $6,036. Defendant told plaintiff he would have the money in a couple of days but defendant never paid plaintiff the installment. According to plaintiff, defendant never complained about the work up to that point. Plaintiff gave defendant the final bill on September 14, 1988, which included the extra charges for materials and work defendant requested. After getting the bill, defendant did not say anything to plaintiff. Plaintiff gave defendant a substitute bill two weeks later after removing a double charge. Plaintiff stated defendant again did not complain about his work. Plaintiff took some pictures of the foundation, which were admitted into evidence, after defendant first complained about the work and refused to pay the contract price at the end of September 1988.

Robert Neil, an employee of plaintiff who worked on defendant’s job, stated he thought the work on the foundation was pretty good. Neil stated defendant’s job was the first foundation he had worked on. At the time of trial, Neil had been working on laying foundations for one year. He stated the work on defendant’s foundation compared favorably to the subsequent jobs he had worked on, for which no complaints were received.

Defendant’s live-in girl friend testified defendant always wanted steel in the foundation walls and two windows and, therefore, these were included in the original price. The girl friend stated she and defendant were not happy with plaintiff’s work when they received the final bill. She stated defendant called plaintiff several times to complain about the quality of the work before the final bill was presented.

Mike Hodges, a former employee of plaintiff who worked on defendant’s foundation, testified for defendant that he disagreed with plaintiff on how to construct the footings for the foundation. Hodges stated the steel reinforcing rods for the walls were not tied together in a square as he had done on previous jobs for other contractors. Hodges, who had been a concrete finisher for 12 years, stated (1) the boards used for the wall forms were not strong enough to hold the walls straight for the concrete; (2) the bottom of the forms were not secured properly with lag bolts but were secured with concrete nails which are known to pop out when the forms are jarred; (3) the walls for the crawl-space area were not secured properly; (4) the footings for the porch area were built on top of the ground instead of three feet down into the ground; (5) the sand under the basement floor was not packed or termited; (6) the day the floor was poured, the truck sat for one hour waiting to pour the concrete, causing the mud to get hot, which then caused the floor to crack almost immediately after being poured; (7) the floor was uneven because there were not enough workers that day to trowel out the floor; and (8) the braces for the windows should have had crisscross braces inside the outer braces so they would not buckle under the weight of the concrete. Hodges stated that after they began defendant’s job, plaintiff went into the hospital for one week and, thus, did not come out to the site for one week. Hodges stated the work on defendant’s foundation was of poor quality and that he would remove the floor.

On cross-examination, Hodges stated he was fired by plaintiff after defendant’s job was completed and he had not worked for any contractor since because plaintiff told Hodges he was going to see that Hodges never worked for another contractor. Hodges also stated he did not know whether a house could be put on the foundation as it was.

Robert Sullivan, the building inspector and zoning enforcement officer, testified he inspected the footings of the foundation on August 10, 1988. He found the general workmanship was poor because the walls were not straight and the windows were buckled, not square. He noted the floors were not level and there was one-half inch of water in the corners of the floor. Sullivan stated the floor could be used but he would have it redone by having it taken out or repoured. On cross-examination, Sullivan stated the foundation was strong enough to hold any house put on it but aesthetically, it looked bad. Sullivan also stated the foundation would not crack or leak any more than any other concrete floor. Sullivan further stated the weather had no effect on the workmanship of the foundation.

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Cite This Page — Counsel Stack

Bluebook (online)
561 N.E.2d 274, 203 Ill. App. 3d 539, 148 Ill. Dec. 968, 1990 Ill. App. LEXIS 1429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-jay-illappct-1990.